Attaullah Khan vs Ali Azam Afridi and others

SAYYED MUHAMMAD MAZAHAR ALI AKBAR NAQVI, J. Through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality of the impugned judgment dated 13.11.2018 Whereby the Writ Petition filed by the respondent No. 1 was allowed and the up-gradation of the post of the petitioner from BPS-20 to BPS-21 was declared void, coram non judice and without any lawful authority.

2. Briefly stated the facts of the matter are that petitioner was appointed as LAN Administrator in BPS-18 on 13.01.1994 in the Provincial Assembly of Khyber Pakhtunkhwa. Subsequently, vide order dated 05.05.2006, the post of LAN Administrator was upgraded from BPS-18 to BPS-19 and the same was re-designated as Director Automation and Information Technology. Vide notification dated 10.06.2006, the petitioner was also upgraded from BPS-18 to BPS-19. On 23.11.2009, the post of Director Automation and I.T was once again upgraded from BPS-19 to BPS-20 as personal to the petitioner and vide order dated 07.12.2009, he was promoted to the said upgraded post.

Subsequently, the, nomenclature of the post of Director Automation and IT was changed to Special Secretary/Director (LT) and vide notification dated 16.03.2018, the same was upgraded from BPS-20 to BPS-21. Consequently, pursuant to notification dated 21.03.2018, the petitioner for the third time was upgraded from BPS-20 to BPS-21. Against the said upgradation, the respondent No. 1 filed Writ Petition No. 3101-P/2018 before the learned High Court in the nature of 'quo warranto' which has been allowed vide impugned judgment. Hence, this petition seeking leave to appeal.

3. Learned counsel for the petitioner inter alia contended that the respondent was not an aggrieved person and none of his rights were violated and he had also no locus stanch or cause of action to file the impugned Constitutional petition; that the petitioner was upgraded on the recommendation of the Finance Committee after following all codal formalities; that the petitioner has no service structure and channel of promotion, therefore; based on his previous service, he was rightly upgraded; that one of the colleague of the petitioner was also upgraded to BPS-21 but only the petitioner has been ordered to be downgraded, which is otherwise discrimination hit by Article 25 of the Constitution and that the learned High Court ignored this legal aspect coupled with the fact that the matter was not meant for issuance of writ of quo warranto.

4. On the other hand, the respondent No 1, who appeared in. person, defended the impugned judgment by mainly contending that the upgradation cannot be made to benefit a particular individual in terms of promoting him to a higher post; that the. Upgradation Policy for the Provincial Assembly Secretariat of Khyber Pakhtunkhwa does not allow twofold upgradation, and that the writ of quo warranto can be filed by any person as such it is not ascribed to only an aggrieved person stricto sensu.

5. We have heard learned counsel for the petitioner and respondent No. 1 in person at some length and have perused the case file.

It is an admitted position that the petitioner was thrice upgraded i.e. firstly on 05.05.2006 when the post of LAN Administrator was upgraded from BPS-18 to BPS-19 and the same was re-designated as Director Automation and IT, secondly on 23.11.2009 the post of Director Automation and IT was upgraded from BPS-19 to BPS-20 and vide order dated 07.12.2009, the petitioner was promoted to the upgraded post. Lastly, the nomenclature of the said post was substituted as Special Secretary/Director IT and the Same was upgraded to BPS-21 vide notification dated 16.06.2018 and the petitioner for the third time was upgraded to BPS-21 on 21.03.2018. The Provincial Assembly of Khyber Pakhtunkhwa has promulgated the Upgradation Policy vide notification dated 29.08.2011 for its employees. Section 2 of the said Policy specifically states that "personal upgradation shall be made once during the whole service period" whereas section 4 of the said Policy mandates that "no such upgradation shall be made in favour of such employees or individual whose posts have once personally upgraded either before or after promulgation of this policy". The three consecutive upgradations given to the petitioners are clearly in violation of the said Policy. The popular principle of law that when a statute/ law describes or requires a thing to be done in a particular manner, it should be done in that manner or not at all is settled in the very old case of Taylor v. Taylor (1876)

Ch.D. 426. This principle has been reiterated in a number of judgments by this Court as well and the same squarely applies in the present case. The Provincial Assembly of Khyber Pakhtunkhwa is the supreme law making body of the Province of KPK and if the lawmaker does not follow the law or Policy framed by itself, how can it compel the masses to obey the said mandate. The case of the petitioner seems to be a case of cronyism. Cronyism is the practice of partiality in awarding jobs/ appointments and other advantages to friends, trusted colleagues or dear ones especially in politics and between politicians and supportive organizations. This also includes appointing "cronies" to positions of authority regardless of their qualification/merit and the same is contrary to meritocracy in which appointments are made purely on qualification. This aspect of wrongdoings has to be taken care of with iron hands to avoid sensation and chaos amongst the masses. The writ of quo warranto is issued by the courts to judicially review such situation against a person when he assumes an office on which he has no entitlement. Quo warranto literally means to supplement by what authority' and it is an effective measure to prevent people from taking over public offices who do not qualify for the same. There is no prohibition in law as to who can file the writ of quo warranto. However, this Court is conscious of the fact that the power to issue this writ is discretional and nobody can claim that the court is bound to issue this writ. The present case is the classic example where this writ was rightly issued by the learned High Court. So far as the argument of learned counsel for the petitioner that one of the colleague of the petitioner was also upgraded to BPS-21 is concerned, we cannot comment upon it as no documentary evidence in this regard has been placed either before this Court or before, the High Court.

6. For what has been discussed above, this petition having no merit is accordingly dismissed and leave to appeal is refused.